Conditions and Terms of Sales, Delivery and Payment

Status: 1st January 2009 

 

1. Exclusivity
 
Our deliveries and services shall exclusively be provided in accordance with the following terms and conditions in the respectively valid version. We shall not accept any contradicting terms and conditions whatsoever. At the latest, when accepting the goods we have delivered, the purchaser shall declare his consent to our terms and conditions.
 

 


2. Terms of Payment

Our terms of payment are:
A 2% discount if payment is received within 10 days, net in the case of payment within 30 days after delivery.
Cash discounts can only be granted if all outstanding invoices have been duly settled. Only the turnover of goods shall be eligible for a cash discount. All other services such as cargoes, exhibition objects and pallets shall be payable without any deduction. We will calculate a consignment surcharge for incomplete packaging units (e.g. for opened pallets), which forms an integral component of the terms and conditions system.
 
3. Prices

Our prices shall apply starting from the indicated and/or agreed-upon date and not automatically for one year. We reserve the right to adjust prices in the event that the purchase prices increase for raw materials, energy or other costs which have a major impact on the cost calculation for the production of our products. We retain the right to raise our prices in the course of the year, providing a six-week advance notice before the end of the respective quarter. Our prices shall apply ex works with effect as of 1st January 2009. Transportation and transportation insurance are not included in the prices. Separate agreements must be concluded for this purpose.
 
4. Retention of Title
 
Our products shall remain our property until any and all claims as well as claims arising in the future under the business relationship with the purchaser have been paid in their entirety.
In the event of a delay in payment, a substantial deterioration of the purchaser’s financial circumstances or judicial or extra-judicial insolvency proceedings, we shall be entitled to demand the return of our products without withdrawing from the contract. In such case, the costs for the return transport shall be borne by the purchaser. It is not permitted to pledge the goods still being subject to retention of title or to assign them by way of security to any third party.
As long as the purchaser is not in default of payment, he shall be entitled to reprocess or resell the goods in the regular and proper course of business. Should our products be processed into new movable objects or mixed or interlinked with movable items that are not our property, then this shall take place on our behalf, which, apart from that, shall not obligate us. These objects shall thus become our property and/or joint property and they shall be held in safe custody for us by the purchaser.

Claims arising from the resale or further processing – also in the case of installation in real estate properties – are now assigned to us by the purchaser in the amount at which the reserved goods were charged to the purchaser or which were calculated in collective invoices, with priority over the others.
 
In the event that the purchaser is in arrears with payment, we are entitled to disclose the assigned amount and to collect the assigned debts. Upon request, the purchaser shall be obligated to disclose the names of any third party debtors to us as well as the amounts mentioned above.

 

If the value of the securities existing for us exceeds our claims by more than 20%, we shall be obligated to release a portion of the securities of our choice upon request by the purchaser.
 
5. Place of Performance, Collection and Transfer of Risk
 
The place of performance for all mutual obligations shall be Leisnig.
 
The purchaser shall either collect the goods himself with the vehicles and personnel suitable for this purpose or the purchaser shall authorise an expert third party to carry out such collection. Entitlement to delivery shall only exist during the general delivery times, about which the collector shall inform himself in advance. Instructions from the warehouse personnel must be followed.
 
The minimum purchase volume shall amount to three full pallets. Lower purchase volumes require an explicit agreement for which an order does not suffice. Upon delivery in the warehouse, the risk shall be transferred to the purchaser pursuant to Article 447 of the German Civil Code ("BGB").
 
In the event that Kerateam shall ensure remuneration agreed upon within the scope of a separate logistics agreement in return for the transportation of the goods to a location as requested by the customer, the risk shall nevertheless be transferred to the customer upon delivery from the warehouse. The customer shall also bear the transport risk, which he must insure at his own expense.
 
If the customer waives the right to transportation insurance, Kerateam is hereby excluded from any and all liabilities including incorrect delivery, insofar as legally permissible.
 
The purchaser shall always bear the costs for the requested transportation insurances. Damages during transportation must always be immediately communicated in written form to the respective transportation company.
 
6. Liability for Material Defects
 
Our liability shall include that our non-vitreous wall tiles and porcelain stoneware tiles correspond to the first choice/best quality during delivery according to Paragraph 5 of the conditions of EN 14411. However, due to the characteristics of ceramics production, we shall not provide any warranty that deliveries will exactly correspond to submitted pocket samples.
 
In the event of second quality sorts, the conditions of EN 14411 shall not apply. We shall define this sorting as appearance grading (HS).
 
As is customary, the square metre data in our sales documents refer to the pavement surfaces, including the joint ratio.
 
Apparent defects such as breakage, decoration flaws, incorrect delivery or the delivery of insufficient quantities must be stipulated in writing without delay. At the latest, this must occur within one week and in any case before processing the respective tiles to ensure adherence to any and all liability claims concerning defects or rights of recourse pursuant to Article 478 of the German Civil Code ("BGB").
 
Pallets must be examined on a random sample basis within a deadline of one week.
 
An objection shall only cover a reduction in value or a replacement for the defective tiles. If non-apparent defects occur after the tiles have been installed, we shall, apart from delivering new tiles, reimburse, also in the case of Article 478 of the German Civil Code ("BGB"), a reasonable cost for the necessary removal of the defective tiles, as well as a reasonable cost of necessary reinstallation. We shall bear the costs up to a total amount of EUR 150,000 for each instance of damage. Further claims, in particular for damage compensation, are excluded insofar as they can be limited or excluded by law due to the General Terms and Conditions.
 

A claim for the reimbursement of costs for the removal and reinstallation of tiles shall not be applicable if the person who supplied the end customer with our products or installed our products for the end customer is not liable towards his end customer for this purpose in accordance with Article 280, paragraph 1, clause 2 of the German Civil Code ("BGB") or due to other legal reasons. Direct claims by the end customer towards us shall remain unaffected by this insofar as they are not legally mandatory.
 
The purchaser's claims arising from liability for material defects shall expire for 1st choice commodities within a period of two years. Second quality sorts shall, in principle, be excluded from complaints regarding quality. Statutory, non-mandatory limitation periods shall remain unaffected by this.
 
With regard to Article 478 of the German Civil Code ("BGB"), the purchaser is obligated to agree upon the shortest possible period of limitation, respectively, for any resale and to transfer this obligation to his purchasers insofar as they are not consumers.
 
7. Modifications to our Products
 
Subsequent modifications to surfaces, in particular by means of affixing decorations, require our prior consent. A liability for material defects within the context of Clause 6 shall not be assumed due to such consent. Modifications without our approval shall result in unlimited liability and they shall be prosecuted under criminal law.
 
8. Place of Jurisdiction
 
The place of jurisdiction – insofar as legally permissible – shall be Chemnitz.
 
9. Contractual Amendments
 
Modifications and supplements to the contracts concluded as well as the amendment to this clause shall only be valid insofar as we confirm them in writing or via fax.

In the case of partial invalidity or incompleteness of these General Terms and Conditions or of the contracts we shall be entitled to determine the contents of the contract in accordance with Article 315 of the German Civil Code ("BGB") if no agreement can be reached, taking into account that which most closely reflects the purpose as originally intended.
 
10. Data Protection
 
We expressly point out that the personal data of our contractual partners will be stored, transmitted and, insofar as necessary, processed in accordance with the Federal Data Protection Law ("Bundesdatenschutzgesetz").

 

 

 

 
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